Filing the Response to a Motion for Summary Judgment – A Procedural Overview
This is the second in a series of LegalBevy blog posts about so-called “Case Killers,” fatal procedural defects that can quickly sink a case. We spoke with numerous legal professionals, who were of the unanimous opinion that there are three distinct “Case Killers”: 1) Failure to file a case within the required statute of limitations; 2) Failure to file a timely Response to a Motion for Summary Judgment (MSJ); and 3) Failure to appeal a case in a timely manner. The first article in this series addressing statues of limitations is available here. Statute of Limitations in Civil Claims
“Did you want me to book you a flight to Texas? You are scheduled for a hearing on the defendant’s MSJ next Thursday in Dallas. By the way, when did you file the Response to the MSJ? I never saw it come across my desk for copying…”
Your administrative assistant just told you this as you are heading out to lunch. You pause and think for a second about the case and its procedural history.
Court docketing issues always give you a little bit of heartburn, because you’re dealing with the court’s schedule, not your Saturday pick-up basketball game. The consequences of a mistake are clearly more crucial than you being stripped of your title as the gym H-O-R-S-E champ.
You have to give it some thought because MSJ deadlines can be a complex maze of confusing information: Different jurisdictions adopt various procedural timing requirements. But the hunger pain in your stomach has suddenly turned to nervous nausea as your check of LegalBevy.com confirms that you must file a Response to a Motion for Summary Judgment at least 7 days before the hearing in Texas. A quick check of the math and you’re anticipating the groveling phone call to opposing counsel asking for a hearing continuance—while pondering if your legal malpractice insurance is paid up.
So what is a Motion for Summary Judgment (MSJ) and why is it so important? Black’s Law Dictionary defines summary judgment as “[a] quick decision of a court based on briefings and affidavits where material facts are not disputed or where the court’s opinion is used for judgment.” In other words, an MSJ is a dispositive request for the court to rule that the other party has no case because there are no facts at issue. The filing party is claiming that the case either should not go before a jury or a jury could only rule in favor of the moving party. For an MSJ to be successful, the moving party must show that there is no issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Simply put, an MSJ can gut all or part of your case (depending on whether it is a comprehensive MSJ or a partial MSJ addressing specific claims). blogs.lawyers.com/attorney
So how do you respond to a Motion for Summary Judgment? First and foremost, you must completely understand the state and local procedural rules in your jurisdiction that address the time frames for filing a response to an MSJ. Equally important is to triple-check the court’s scheduling order as many courts address MSJ filing deadlines in their standard scheduling order (which can vary from court to court). Because MSJs require that there be no facts at issue, in some jurisdictions judges will allow adequate discovery to be conducted before they entertain a hearing on an MSJ or even allow an MSJ to be filed. Once it is appropriate to file an MSJ, procedural (state, local, or court) guidelines dictate the sequence of filing a Response to the MSJ and the moving party’s Reply to the Response.
For example, in Texas if the filing party schedules a hearing at the time they file their MSJ, the hearing date must occur at least 21 days after the date that their MSJ was filed. If the filing attorney successfully schedules a hearing on the 21st day after they file their MSJ, the responding counsel only has 14 days to prepare and file the MSJ Response because, as illustrated by our hapless attorney friend above, a Response to an MSJ must be filed at least 7 days before the hearing on the MSJ in that jurisdiction. Compare those deadlines with Washington State, where the rules require filing and service of an MSJ at least 28 calendar days before the hearing; a Response to the MSJ to be filed no later than 11 days before the hearing; and a Reply to the Response to be filed no later than 5 days before the hearing. Back in Texas, the rules allow a Reply to a Response to an MSJ to be filed at any time before the hearing date
Confused yet? You should be. The moral of the story is to always familiarize yourself with the procedural timing requirements of the jurisdiction in which the MSJ is filed because the rules vary widely. www.mindingyourbusinesslitigation.com
If granted, an MSJ can be a potential “Case Killer.” A responding party must show that issues of material facts exist and that the moving party is not entitled to judgment as a matter of law. The Response to a Motion for Summary Judgment often entails comprehensive legal briefing, numerous affidavits, and deposition transcript evidence attached as exhibits. All of this information is critical to defeating an MSJ attack.
But equally important is a thorough knowledge of the procedural timelines to file MSJ-related pleadings. Imagine spending hours crafting a well-written and viable MSJ Response and accumulating all the evidence required to counter the MSJ, only to discover that you missed the jurisdiction’s deadline date by a day or two because it is different from the requirement in your home jurisdiction.
Attention to detail and diligent research of MSJ deadline requirements in the filing jurisdiction are crucial to avoid a catastrophic procedural misstep that could cost you the case.
*** The author and LegalBevy are not responsible if information in this blog posting is not accurate, complete, or current. The material on this blog posting is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this blog posting is at your own risk. The contents of this blog posting are intended to convey general information only and not to provide legal advice or opinions. The contents of this blog posting, and the posting and viewing of the information on this blog, should not be construed as, and should not be relied upon for, legal or procedural advice in any particular circumstance or fact situation. No action should be taken in reliance on the information contained on this blog posting and the author and LegalBevy disclaim all liability, to the fullest extent permitted by law, with respect to actions taken or not taken based on any or all of the contents of this blog posting. An attorney should be contacted for advice on specific legal issues.